The defendant was convicted in the Court of Special Sessions of unlawfully possessing a burglar's tool (Penal Law, § 408). The record in this case discloses that he was apprehended six feet away from an automobile whose right front window vent was broken. At the time of this arrest, the defendant had a 12-inch screw driver in his possession, although it does not appear where on his person it was found. The defendant stated it had been given to him by a friend. No proof was offered to connect the defendant with the breaking of the window. The mere possession of a tool ordinarily used for legitimate purposes, cannot be translated into the kind of possession or use condemned by the statute, in the absence of circumstances evidencing an intent to use it for an unlawful purpose. ( People v. Spillman, 309 N.Y. 295, 299, 300; People v. Holzman, 232 N.Y. 553.) Many of the circumstances in this case are as consistent with innocence as with guilt. It was error, therefore to find the defendant guilty of the crime charged. ( People v. Weiss, 290 N.Y. 160, 163; People v. Woltering, 275 N.Y. 51, 61; People v. Suffern, 267 N.Y. 115, 127; People v. Fitzgerald, 156 N.Y. 253, 258.) The judgment of conviction is reversed on the law and the facts and the information is dismissed.
Concur — Botein, P.J., Breitel, M.M. Frank, McNally and Bergan, JJ.